Bombay High Court

Nanded Waghala City Municipal ... vs Keroji Sitaram Dasare on 5 December, 2015

Bench: R.V. Ghuge

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kps
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                           BENCH AT AURANGABAD

                                  WRIT PETITION NO. 11317 OF 2015




                                                                  
      Nanded Waghala City Municipal Corporation.
      Through its Commissioner,
      Laxman s/o Kashiram Chaure,




                                                                 
      Age : 46 years,
      Occ : Service as Assistant Commissioner,
      R/o Nanded, Tal. & Dist.Nanded.
                                               ...PETITIONER




                                                    
                -VERSUS-               
      Keroji Sitaram Dasare,
      Age : 49 years, Occ : Nil,
                                      
      R/o Dayanand Nagar, 
      New Mondha, Nanded,
      Tal. & Dist.Nanded.
                                                            ...RESPONDENT
         


                                                 ...
      



                           Advocate for Petitioner : Shri Ingole Patil R. K.
                                                   
                           Advocate for Respondent : Shri Piratwad Anil P.
                                                 ...





                                              CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 05th December, 2015

Oral Judgment:

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.



      2                  The   Petitioner-   Municipal   Corporation   is   aggrieved   by   the 





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order dated 29.07.2015 delivered by the Labour Court below Exhibit U/2

in Complaint (ULP) No.12/2014 by which the second show cause notice

dated 14.03.2014 issued by the Petitioner/ Management has been stayed.

3 The Petitioner is also aggrieved by the judgment and order

dated 06.10.2015 delivered by the Industrial Court in Revision (ULP)

No.42/2015 by which the revision petition of the Petitioner has been

dismissed.

4 I have heard the learned Advocates for the respective sides at

length.

5 The issue involved is that the Respondent/ Employee was

served with the second show cause notice dated 14.03.2015 along with a

copy of the Enquiry Officer's report dated 10.02.2014 and the same has

been stayed by the Labour Court.

6 It is not disputed that the charge sheet -cum- show cause

notice was issued to the Respondent/ Employee. He was charged with

unauthorized absenteeism for 70 days. The Respondent was a "Leading

Fireman" in the emergency cadre of the Petitioner and deployed in the

Fire Brigade of the Petitioner. He has been placed under suspension

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pending the disciplinary proceedings.

7 It is also not disputed that after considering the reply of the

Respondent, the Petitioner initiated the domestic enquiry and the

Respondent engaged an Advocate as his defence representative and

participated in the enquiry. After conclusion of the enquiry, the Enquiry

Officer submitted his report dated 10.02.2014 by which the charges of

unauthorized absenteeism are held to be proved against the Respondent.

8 After receiving the second show cause notice dated

14.03.2014 and the findings of the Enquiry Officer annexed thereto, the

Respondent preferred Complaint (ULP) No.12/2014 before the Labour

Court at Nanded. By an ex-parte ad-interim order dated 25.04.2014, the

Labour Court concluded that prima facie, the punishment proposed

appears to be shockingly disproportionate.

9 The Petitioner submits that the Respondent obtained a copy of

the inward register and after he noticed an entry at Sr.No.23 indicating

that the order of termination by way of punishment was issued, he rushed

to the Labour Court by filing the complaint and was granted an ex-parte

ad-interim protection. By the impugned order dated 29.07.2015, the

Labour Court has allowed the application for interim relief on the ground

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that the Respondent is not absent for more than six months and therefore,

the Petitioner was prevented from initiating any action against the

Respondent.

10 The Petitioner preferred Revision (ULP) No.42/2015 before

the Industrial Court at Jalna. By the impugned judgment dated

06.10.2015, the Industrial Court concluded that the interim order passed

by the Labour Court was not perverse and no interference is called for.

11 The Petitioner submits that the Petitioner desires to follow the

due procedure of law while dealing with the disciplinary proceedings.

When there was substantial compliance of such procedure, the Labour

Court ought not to have interfered with the endeavour of the Petitioner to

take the disciplinary proceedings to a logical end. Earlier by an ex-parte

ad-interim order dated 25.04.2014 and subsequently, by the interim order

dated 29.07.2015, the Labour Court has prevented the Petitioner from

initiating action in accordance with law.

12 The Petitioner submits that the impugned orders of the

Labour Court and the Industrial Court deserve to be quashed and set aside

and the Petitioner deserves to be permitted to follow the due procedure of

law and conclude the disciplinary proceedings in accordance with law.

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    13              Shri Piratwad, learned Advocate for the sole Respondent, has

vehemently supported the impugned orders. He submits that after

receiving the second show cause notice, the Respondent has replied to the

same on 29.03.2014. The reply has been submitted after considering the

conclusions of the Enquiry Officer which are available through the report

supplied to the Respondent. The Respondent has tried to convince the

Petitioner that the charge is not proved against him. In the event, it is so

held that the charge is proved, the same is of a minor and technical

character. It does not warrant a major punishment. The past service record

of the Respondent should be scrutinized before initiating any action

against him.

14 He further submits that the Petitioner is under a legal

obligation to consider the gravity and seriousness of the misconduct, the

past service record and thereafter, arrive at a pragmatic decision as

regards the quantum of punishment. He, therefore, submits that his

apprehension that the Petitioner will intentionally terminate his services

came to be true when he found through the inward register, copy of which

he has obtained and placed before this Court, that the Petitioner has

decided to terminate his services.

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    15              The said inward register is taken on record and marked as 




                                                                                        
    Exhibit X for identification. 




                                                                
    16              Shri   Piratwad   further   submits   that     the   Labour   Court   has

rightly protected him from 25.04.2014 and by the impugned order, has

rightly directed the Petitioner not to initiate any action against the

Respondent. He further points out that the Industrial Court has also come

to the same conclusion. The complaint is held to be maintainable. Balance

of convenience was held in favour of the Respondent by the Labour Court

as well as the Industrial Court and hence, the Industrial Court also

restrained the Petitioner from taking any action against the Respondent.

He further adds that the impugned orders are legal and sustainable and

no interference is called for. He prays for the dismissal of this petition with

heavy costs.

17 I have considered the submissions of the learned Advocates as

have been recorded herein above. I have no hesitation in concluding that

neither the Labour Court nor the Industrial Court has considered the legal

position.

18 The Apex Court in the case of Hindustan Lever Limited vs.

Ashok Vishnu Kate, 1995(6) SCC 326, has considered a similar issue after

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the Division Bench of this Court has concluded that the complaint under

Item 1 of Schedule IV of the MRTU & PULP Act, 1971 was maintainable

before the Labour Court even at a penultimate stage.

19 The law is well settled. An employee may approach the

Labour Court under Item 1 of Schedule IV of the MRTU & PULP Act, 1971

even at a penultimate stage. However, what is required to be scrutinized is

that the stay to the disciplinary proceedings is not to be granted at the

mere askance. A very strong prima facie case has to be made out so as to

enable the Labour Court to conclude, prima facie, that the punishment

likely to be awarded is "shockingly disproportionate" and the employee is

prima facie guilty of unfair labour practices. Both the lower Courts have

lost sight of the note of caution struck by the Apex Court in the Hindustan

Lever case (supra).

20 It would be worth the exercise, for the benefit of the litigants,

to reproduce paragraphs 53 and 54 of the Hindustan Lever case (supra) as

under:-

"53. Reference made in paragraph VI to the Bombay High Court's judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation

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of the relevant provisions of the Act. Therefore, the earlier view taken by the learned Single Judge of

the Bombay High Court cannot be said to be well- sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.

54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be

gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be

followed by such employers. These standing orders give sufficient protection to the concerned employees

against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in

challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court

dealing with such complaint should not lightly interfere with such pending domestic enquiries against

the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and

only when a very strong prime facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for

mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated."

21 In the light of the above, the Labour Court was obliged to

consider whether, the principles of natural justice have been substantially

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followed by the Employer while conducting an enquiry and whether, a

reasonable opportunity of defence was given to the charge-sheeted

employee.

22 I find, in the instant case, that the charge sheet-cum- show

cause notice was given, the Respondent submitted his reply dated

29.03.2014 and a domestic enquiry was conducted in accordance with the

Rules. In fact the Respondent was defended by an Advocate in the enquiry.

As such, after the second show cause notice was issued, the Respondent

was expected to reply to the said notice in the light of the findings of the

Enquiry Officer and thereafter, enable the Employer to arrive at a decision

so as to conclude the disciplinary proceedings.

23 The Apex Court in the Hindustan Lever case (supra) has

concluded that the disciplinary proceedings cannot be intercepted at

various stages. Though the Employer may not strictly have a right to take

disciplinary action, the Employer is obliged to follow the due procedure of

law in conducting domestic enquiries against earring employees. These

proceedings have to be taken to a logical end. I do not find that the

Labour Court has embarked on an exercise as laid down by the Apex

Court in the Hindustan Lever judgment (supra)..

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    24              I   also   do   not   find   that   the   Labour   Court   or   the   Industrial

Court have considered that the Respondent was "Leading Fireman" and

was working in the emergency cadre of the Petitioner. He had remained

unauthorizedly absent for 70 days for personal reasons which have not

been divulged. I find it unacceptable that the Labour Court has concluded

that he was not absent for more than six months and therefore, action

initiated against him, deserves to be stayed.

The Apex Court in the case of Managing Director, ECIL and

others vs. B.Karunakar and others, (1993) 4 SCC 727, has dealt with the

distinction between the 15th amendment and the 42nd amendment to the

Constitution. Under the 15th amendment to Article 311, an employee had

two rights. Firstly, a right to show cause on the charge sheet and secondly,

to show cause on the proposed quantum of punishment. By the 42 nd

amendment, the first right was maintained and the second right was

altered. The right to show cause on the quantum of punishment was taken

away and an employee was bestowed with a right to show cause on the

findings of the Enquiry Officer and reason out to the Employer as to why

the Employer should discard the findings and conclusions of the Enquiry

Officer. A right to show cause on the quantum of punishment is now no

longer available to the employee. This also does not seem to have been

considered by the Courts below.

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    26              The observations of the Apex Court in paragraph Nos.25 to 30

in the Managing Director, ECIL judgment (supra) read as under:-

"25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz.,

before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has

considered the findings in the report and has come to the conclusion with regard to the guilt of the

employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no

penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.

26. The reason why the right to receive the report of the

Inquiry Officer is considered an essential part of the

reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along

with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while

drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of

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fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry

Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on

the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In

the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record

the evidence and forward the same to the disciplinary authority, that would not constitute any additional

material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his

findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are

taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of

the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity

to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.

27. It will thus be seen that where the Inquiry Officer is

other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is

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not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of

defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in

the disciplinary proceedings.

28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of

being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by

overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations.

What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may

be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect

accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which

inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and

consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of

considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the

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conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the

employee and the penalty to be imposed were only tentative. All that has happened after the 42 nd Amendment of the Constitution is to advance the

point of time at which the representation of the employee against the enquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against

the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.

29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent

employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority

arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the

employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable

opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

30. Hence, the incidental questions raised above may be answered as follows:

(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of

the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if

the statutory rules do not permit the furnishing of the report or are silent on the subject.

(ii) The relevant portion of Article 311(2) of the Constitution is as follows:

"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against

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him and given a reasonable opportunity of being heard in respect of those charges."

Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed

or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded.

The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of

the Union or an all India service or a civil service of a State or to the holders of the civil posts under the

Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service

rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report

notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his

failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to

make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the

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case whether there are rules governing the disciplinary proceeding or not and whether they

expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules

require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its

findings on the charges levelled against him. Hence question (iv) is answered accordingly.

(v) The next question to be answered is what is the effect

on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and

what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed

or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may

have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the

employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law

and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the

report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an

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"unnatural expansion of natural justice" which in itself is antithetical to justice."

27 In my view, the Labour Court, by granting interim relief to the

Respondent, has prevented the Employer from initiating disciplinary

action against him which is apparently contrary to the note of caution

struck by the Apex Court in paragraph 54 of the judgment in the

Hindustan Lever case (supra), which has been reproduced herein above.

The above aspects as discussed, do not seem to have been considered by

the Labour Court as well as the Industrial Court.

28 In the light of the above, the Writ Petition is partly allowed.

29 The impugned order dated 29.07.2015 passed by the Labour

Court below Exhibit U/2 and the impugned judgment of the

Industrial Court dated 06.10.2015 delivered in Revision

(ULP) No.42/2015 are quashed and set aside.

30 The Petitioner Corporation is, therefore, directed to issue a

fresh order of punishment within a period of 05 (five) days

from today after considering the following aspects:-

(a) Length of service of the Respondent/ Employee.

(b) The charges held to be proved against the Respondent.

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           (c)      His function in the Emergency Cadre and the fact of absence

for 70 days for the undisclosed reasons calling them as

personal reasons.

(d) Impact of his absence on the day to day working of the Fire

Brigade.

(e) Whether, the Respondent has a clean and unblemished past

service record.

(f) If his past service record is clean, the same shall operate as a

mitigating factor and in the event, the same is blemished, it

shall operate as an aggravating factor.

(g) The reply filed by the Respondent pursuant to the second

show cause notice dated 14.03.2014.

31 Needless to state, the Petitioner Corporation shall apply it's